The works council elections in spring 2026 are approaching. Election committees have already been appointed in many workplaces, and some training for election committee members have already taken place. Many works councils and election committees are rightly concerned that the works council election could be contested due to potential violations of election law (§ 19 BetrVG). This concern is justified, as errors occur repeatedly. Since the Federal Labor Court (Bundesarbeitsgericht, BAG) has issued important rulings on key issues in recent years, this article outlines ten typical pitfalls (both “evergreens” and new developments).

1. No electronic voting (commonly referred to as online voting)

In works council elections, votes may only be cast in person at the ballot box (in-person ballot voting) or by postal vote (Briefwahl). Electronic voting (“online voting”) is not permitted.

There is some expectation that the current coalition government may introduce electronic voting as a “third optional method,” but this has not yet happened, nor is it clear when it might. Consequently, votes may not be cast electronically. An election conducted (even partially) by electronic means is subject to challenge and may even be void.

2. Adequate information for foreign employees

The election committee must ensure that foreign employees who do not have sufficient command of the German language are informed about the entire election procedure in an appropriate manner before the election is initiated, according to § 2 (5) of the Works Council Election Regulations 2021 (Wahlordnung, WO 2021).

If this is not followed, there is a risk the election might be invalid. The courts sometimes apply strict standards: sufficient language skills are not assessed based on whether foreign employees understand work instructions or can communicate with colleagues. In cases of doubt, the election committee must assume that German language skills are insufficient to understand the complex rules of election law.

Therefore, election information and notices should, when in doubt, be provided in all relevant languages. In practice, these obligations are frequently insufficiently observed by election committees.

3. Careful determination of the relevant operational unit

Under German works constitution law, the Betrieb is not automatically a company or legal entity. The Betrieb constitutes a functionally autonomous operational unit in which the employer, with the assistance of employees and technical resources, pursues specific operational purposes on a continuing basis. Correctly identifying this operational unit is therefore of central importance for the validity of the election.

Difficulties regularly arise, in particular, in the following constellations:

• where it is unclear whether several companies jointly operate a joint establishment (Gemeinschaftsbetrieb), in which case only one works council must be elected for the jointly operated operational unit; or
• where establishment parts (Betriebsteile) within the meaning of § 4 BetrVG exist, raising the question whether their employees must elect a separate works council or participate in the election of the works council of the main establishment.

The election committee must carefully examine whether an establishment part constitutes a separable operational unit with its own organizational structure, in particular whether it has at least one on-site supervisor with managerial authority (a criterion that is frequently disputed in practice) and whether it is geographically remote from the main establishment to a degree that is legally relevant.

Given the high complexity and litigation risk, election committees are strongly advised to obtain expert guidance from IG Metall representatives and/or a lawyer specialized in labor law. Where legal advice is objectively required due to the complexity of the matter, the employer is obliged to bear the costs pursuant to § 20 (3) BetrVG.

In all cases, the relevant operational unit, including any establishment parts or small establishments, must be clearly, unambiguously, and precisely defined in the election notice (Wahlausschreiben).

4. Correct preparation and maintenance of the voters’ list

The voters’ list (Wählerliste) determines who is entitled to vote (active suffrage) and who is eligible for election (passive suffrage). It must be updated until the conclusion of the election (potentially even on election day itself) to reflect new hires, departures, and obvious errors.

Preparing the voters’ list correctly is demanding, as the election committee must determine:

• who qualifies as an employee (as opposed to working under a freelance service or contract-for-work agreement),
• who qualifies as a senior executive employee (leitender Angestellte*r) and is therefore excluded from voting rights, and
• which employees belong to the establishment (establishment affiliation).

With regard to establishment affiliation, recent Federal Labor Court case law must be observed. According to this case law, managerial employees are also assigned to the establishment in which the employees subject to their instructions work. Exercising functional (technical) authority is sufficient; disciplinary authority is not required.

As a result, managers may, in certain cases, be entitled to vote and stand for election in multiple establishments simultaneously. Legal advice from a competent source is essential in such situations.

5. Correct calculation of deadlines and determination of deadline expiry times

Errors in calculating deadlines are a frequent cause of successful election challenges.

In the regular election procedure, the 14-day deadlines for submitting nomination lists and for objections to the voters’ list must be calculated correctly.

In the simplified election procedure, the election notice must specify:

• the end of the three-day deadline for objections to the voters’ list,
• the deadline for submitting election proposals (calculated backwards),
• the deadline for requesting postal voting (also calculated backwards), and
• the deadline set by the election committee for subsequent postal voting.

As a rule, all deadlines expire at 24:00 (midnight). However, pursuant to § 41 (2) WO 2021, the election committee may set an earlier time, provided that the working hours of the majority of voters have already ended by then.

This provision allows the election committee to limit its presence at the workplace, but it must not unduly restrict accessibility on the final day of the deadline. In continuous shift operations (24/7 operations), advancing the deadline is generally not permissible. In other establishments, election committees are strongly advised to use this option sparingly. In the event of a dispute, the committee must be able to prove that its forecast regarding the majority of employees was correct.

In companies with rotating shift arrangements, it is recommended not to set the deadline before the end of the core working time window.

6. Prompt and complete review of nomination lists

A very common error is that election committees take too long to review submitted nomination lists (or election proposals in the simplified procedure).

Pursuant to § 7 WO 2021, the review must be carried out without delay, ideally within two working days of receipt. As the submission deadline approaches, the review must be conducted even faster – potentially within hours.

The election committee must promptly communicate the result of its review directly to the designated representative of the nomination list. Only then do the submitters have a realistic opportunity to correct deficiencies and resubmit a valid proposal.

All incurable and curable defects must be specifically identified, together with their legal consequences. In addition to the incurable defects listed in the Election Regulations, there are three further incurable defects:

• nomination of candidates who are not eligible,
• lack of a clear connection between supporting signatures and the list of candidates, and
• collection of supporting signatures before the candidate section has been fully completed.

The election committee must also verify whether the type of employment is correctly stated. A works council office (chair or deputy chair) does not constitute a type of employment and must not be published alongside the professional activity. However, where works council members have been fully released from work duties for a long period, it is permissible to state “full-time released works council member” as the type of employment.

If a genuine trade union list, which requires only two authorized signatories, is submitted, the election committee must verify that it has indeed been properly signed by two duly authorized representatives.

7. Correct design of ballot papers

Ballot papers must comply strictly with statutory requirements. All ballot papers must be identical in every respect and may only be printed on one side.

In the regular election procedure:

• in list elections, only the first two candidates of each list are printed;
• in individual candidate elections, candidates are printed in the order in which they appear on the single valid nomination list.

In the simplified election procedure, candidates must be listed in alphabetical order.

8. Postal voting only within statutory limits

The use of postal voting is exhaustively regulated by law. A general “postal vote for all” is not permissible, even if only a small number of employees are expected to vote in person.

Postal voting is permitted in only three cases:

              1.          upon request of the eligible voter (§ 24 (1) WO 2021),

              2.          where employees are absent due to the nature of their employment or for other reasons (§ 24 (2) no. 2 WO 2021), or

              3.          where the election committee orders postal voting for a geographically remote establishment part (§ 24 (3) WO 2021).

In assessing “geographical remoteness,” the election committee has discretion. The decisive factor is whether voting at the polling station would be unreasonable. Even a distance of just a few kilometers may suffice if no transport service is available.

For postal voting upon request under § 24 (1) WO 2021, Federal Labor Court case law holds that it is sufficient for voters to state that they wish to vote by post; no further justification is required. The election committee need only verify absence on election day if doubts arise.

Postal voters are always free to cast their vote in person at the ballot box, even if they have already returned their postal voting documents. It is advisable to inform postal voters of this option in the accompanying cover letter.

9. Correct classification of the nature of employment

Pursuant to § 24 (2) no. 1 WO 2021, the election committee must automatically send postal voting documents to eligible voters who are expected not to be present at the establishment on election day.

This group includes employees who, to the election committee’s knowledge, are on short-time work (Kurzarbeit) at the time of the election. It also includes employees who work entirely or predominantly remotely or from home.

However, if the election committee knows that employees from these groups will in fact be present on election day, postal voting documents must not be sent unless the employee has requested postal voting under § 24 (1) WO 2021.

The election committee is neither required nor expected to conduct independent investigations into possible presence. However, if it has relevant information, it must not ignore it.

10. Strict compliance with correct folding of ballot papers

Ballot papers that are folded in such a way that the printed text is visible from the outside are invalid. This applies to both in-person voting and postal voting if voters insert incorrectly folded ballots into the ballot envelope.

This may appear surprising at first glance, but the secrecy of the vote is absolutely protected during the voting process. This rule serves to prevent vote-buying. Since incorrect folding in in-person voting irrebuttably indicates a breach of ballot secrecy before insertion into the ballot box, and since postal votes must be treated identically for reasons of equal treatment, incorrectly folded postal ballots are likewise invalid.

This interpretation by the highest courts must be observed, even though some legal commentary assessed the issue differently four years ago.

Important: In in-person voting, the election committee can prevent an invalid ballot from being cast by issuing a new ballot paper and having the incorrectly folded one destroyed by the voter in the presence of election committee members.

In postal voting, incorrectly folded ballots should be sorted out as invalid at the beginning of the public vote-counting session, as the election committee can identify the defect when removing the ballot from the envelope. At the latest, if such a ballot is encountered during counting, it must be set aside as invalid.

In practice, a large number of ballots may be invalid if voters are not clearly informed about correct folding. Both the ballot paper and the postal voting instructions should include a clear notice. It is also permissible to draw attention to correct folding by means of separate posters (even in the polling room or voting booth), tutorials, separate emails, or during works meetings.

Attend election committee training!

Election committees can significantly reduce the risk of a successful election challenge by avoiding well-known and recurring errors such as those described above. As many additional sources of error exist and case law on election law continues to evolve, it is strongly recommended that all election committee members attend specialized training.

IG Metall Berlin offers compact, up-to-date election committee training through its educational institution, based on the latest high-quality materials, for both the regular and simplified election procedures (mandatory simplified procedure for up to 100 employees; for establishments with 101–200 employees, the simplified procedure may be agreed between the election committee and the employer).